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Government’s interests trump privacy rights of federal contractors

The Supreme Court ruled today on the privacy turducken case I first wrote about here.  Not surprisingly, it favors the government’s right to conduct background checks over an individual’s right to privacy.

In its decision in National Aeronautics and Space Administration v. Nelson, the Court held that the government has the right to ask reasonable questions of contractors in an employment background investigation subject to safeguards against public disclosure.

Plaintiffs were contract employees at NASA’s Jet Propulsion Laboratory. At the time they were hired, they were not subject to government background checks. However, after 9/11, the Department of Commerce mandated that contract employees with long-term access to federal facilities complete a standard background check. The background check involved completion of a standard form that asked employees about drug use within the past year.  The plaintiffs particularly objected to requests for information from schools, landlords, employers and other third parties, especially “adverse” information about alcohol and drug use; finances; and mental or emotional stability.  One form also gives informants space to provide “derogatory” information about the subject.

The plaintiffs claimed that the background check violated their constitutional right to informational privacy. The Ninth Circuit Court of Appeals ruled for the plaintiffs, holding that although the inquiries furthered the government’s interest in combating illegal drug use, certain questions about drug treatment or counseling furthered no legitimate interest and thus were likely to be held unconstitutional. It also held that a questionnaire sent to employees’ references contained open-ended questions not narrowly tailored to meeting the government’s interests in verifying contractors’ identities and ensuring facility security and thus also likely violated plaintiffs’ informational privacy rights.

The Supreme Court today reversed.  While acknowledging that it has recognized a constitutional interest in “avoiding disclosure of personal matters,” and assuming that the challenged inquiries implicated a privacy interest of constitutional significance, it nevertheless found that this privacy interest did not prevent the government from asking reasonable questions in an employment background investigation subject to safeguards against public disclosure.

The Court held that the government has broad discretion to collect personal information for purposes of managing its internal operations. It also noted that the history of government background checks shows that the government had an interest in conducting basic background checks to ensure security of its facilities and to employ a competent, reliable workforce, and the fact that plaintiffs were contract employees did not diminish this interest. The Court also rejected the argument that the government has a constitutional burden to demonstrate that its employment background questions are necessary or the least restrictive means of furthering its interests.

Finally, the Court noted that information gathered during the background check was subject to substantial protections against public disclosure.  The Privacy Act, for example, allows the government to maintain only those records “relevant and necessary to accomplish” a purpose authorized by law; requires written consent before the government may disclose an individual’s records, and imposes criminal liability for willful violations of its nondisclosure obligations.

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